區域法院（刑事）Deputy District Judge Colin Wong30/7/2023[2023] HKDC 1063
DCCC411/2022
A A
B B
DCCC 411/2022
C [2023] HKDC 1063 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 411 OF 2022
F F
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HKSAR
H H
v
I HASSAN HARIS (D1) I
REHMAN SAFE-UR (D2)
J J
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K K
Before: Deputy District Judge Colin Wong
L L
Date: 31 July 2023
M Present: Ms Katie Fong, Public Prosecutor, for HKSAR M
Mr Peter Pannu, instructed by Choy Yung & Co, assigned
N N
by the Director of Legal Aid, for the 1st defendant
O Mr William Allan, instructed by Mohnani & Associates, for O
the 2nd defendant
P P
Offences: [1] Trafficking in a dangerous drug（販運危險藥物）
Q Q
[2] Resisting police officers in the execution of their duties
R
（抗拒執行職責的警務人員） R
S S
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T REASONS FOR SENTENCE T
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A A
B B
C 1. D1 pleaded guilty to Charge 1 trafficking in a dangerous drug1, C
namely 8.80 grammes of a solid containing 7.45 grammes of ketamine and
D D
Charge 2 resisting police officers in the execution of their duties2. Charge
E 3 against D13 is left in court file. E
F F
2. D2 pleaded not guilty to Charge 1. D2 was willing to plead
G guilty to a charge of simple possession, but prosecution refused. After trial, G
D2 was found not guilty to Charge 1, but was convicted for the charge of
H H
possession of a dangerous drug4.
I I
3. Before sentence, I obtained a background report for D1 and
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Drug Addiction Treatment Centre Suitability report for D2.
K K
FACTS OF D1
L L
M 4. At about 1850 hours on 30 December 2021, whilst police M
officers were conducting an anti-crime patrol, PC16177 (PW1) and
N N
PC16748 (PW2) observed a black vehicle bearing number plate XC7742
O (“Vehicle”) parked in the lay-by area outside Chung Bo House, Tin Chung O
Court, Tin Shui Wai. The engine of the Vehicle was switched on and D2
P P
was sitting in the driver’s seat. D1 was sitting in the front passenger seat
Q looking around furtively. Q
R R
S 1
S
Contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.
2
Contrary to section 63 of the Police Force Ordinance, Cap 232.
3
Charge 3: Doing an act or a series of acts tending and intended to pervert the course of public justice,
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contrary to Common Law and punishable under section 101I(5) of the Criminal Procedure Ordinance,
Cap 221.
4
Contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134.
U U
V V
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A A
B B
5. PW1 and PW2 approached the Vehicle. PC10496 (PW3)
C arrived thereafter. D1 appeared to be nervous and locked the Vehicle. C
Subsequently, when PW1 managed to open the nearside front door of the
D D
Vehicle, D1 immediately ran out of the Vehicle. PW1 shouted, “Police,
E don’t move”. D1 put up a fierce struggle whilst PW1 and PW2 controlled E
D1’s arms, and PW3 also tried to subdue D1 onto the ground.
F F
G 6. During the course of the struggle, PW1 spotted that a red and G
white Marlboro cigarette box (“Cigarette Box”) in D1’s left hand and a
H H
black mobile phone (“Black Mobile Phone”) in D1’s right hand fell onto
I the ground. D1 then pushed the Cigarette Box and the Mobile Phone into I
a drain hole whilst he was struggling on the ground.
J J
K 7. Thereafter, whilst continuing to struggle, D1 suddenly opened K
his mouth, posing as if he was about to bite PW1’s left forearm. PW1
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warned D1 several times that OC Foam would be used but in vain.
M Eventually PW1 sprayed OC foam against D1’s face. Subsequently, PW1, M
PW2 and PW3 managed to subdue and handcuff D1.
N N
O 8. At about 1905 hours, PW1 opened the drain cover and seized O
the Cigarette Box and the Black Mobile Phone from the drain. PW1
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opened the Cigarette Box in front of D1 and found 27 transparent re-
Q sealable plastic bags therein, each plastic bag containing some white Q
powder suspected to be ketamine (“27 Bags”).
R R
S 9. PW1 also searched D1 and seized from his bag HK$6,273 in S
cash, a white mobile phone (“White Mobile Phone”).
T T
U U
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A A
B B
10. D1 was arrested for “trafficking in a dangerous drug” by PW1.
C Under caution, D1 stated in Punti that there were twenty something “K” C
(“K 仔”) inside the Cigarette Box. He bought them for $7,000 and wanted
D D
to sell them for $9,000 to make a profit. He also asked for a chance because
E his son had just been born. E
F F
11. During a subsequent video recorded cautioned interview
G taken by DPC18958 on 31 December 2021 at 2111 hours to 2148 hours, G
D1 stated in English, inter alia, that:-
H H
I (a) The dangerous drug was “K” (“K 仔 ”) for self- I
J
consumption and denied trafficking in dangerous drugs. J
K K
(b) D1 and D2 purchased 26 packets [of dangerous drugs]
L
for self-consumption for $9,300. D1 and D2 each paid L
$4,650. The 26 packets were to be split equally
M M
between them. The seller gave them 1 packet for free.
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(c) The seller threw the Cigarette Box and the White
O O
Mobile Phone into the Vehicle without collecting
P money from D1 and D2 and went away. P
Q Q
(d) D1 and D2 usually took the dangerous drug every 2 to
R 3 days. They purchased 27 packets for a month’s R
consumption.
S S
T (e) D1 was a new user of the dangerous drugs. He took it T
4 or 5 days ago due to depression.
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A A
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C (f) D1 opened the Cigarette Box to check the dangerous C
drugs.
D D
E 12. The Government Chemist’s Certificate certified that the 27 E
Bags were 27 plastic bags containing a total of 8.80 grammes of a solid
F F
containing 7.45 grammes of ketamine. The street value of 8.80 grammes
G of ketamine was HK$4,190 in December 2021. G
H H
13. D2 was the registered owner of the Vehicle at the material
I time. I
J J
FACTS OF D2
K K
14. Facts of the D2 were already spelt out in the Reasons for
L L
Verdict. I do not repeat them herein. In short, D2 was found inside the
M Vehicle with knowledge of the drugs. The court found he did not possess M
the same for the purpose of trafficking.
N N
O D1’S MITIGATION O
P P
15. Prior to the commencement of the trial on 5 July 2023, the
Q solicitors for D1 wrote to the District Court indicating that D1 would plead Q
guilty to Charges 1 & 2.
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S S
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D1’S BACKGROUND
C C
16. D1 was born in Hong Kong on 12 July 2002 and is now 21
D D
years old. At the time of the offence, he was aged 19. He is a permanent
E resident here. He has a clear record. E
F F
17. His mother died in January 2013 from kidney failure when he
G was only 11 years old. He lives with his father, his elder brother and his G
elder sister and his partner, with whom he has two children, one aged two
H H
and one just one week old.
I I
18. His partner is now a full-time carer of the children and prior
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to that she worked at a restaurant. D1 is working as a security guard
K earning HK$16,000 per month. K
L L
19. D1 foolishly got himself into trafficking as he was driven to
M earning more money after his partner had a child. He was not academically M
accomplished as he was a school drop out after completing Secondary-3
N N
after his mother’s death and was not able to earn enough to maintain his
O new family. The silver lining is that he had just started on this venture and O
was busted in what is believed to be a sting operation.
P P
Q 20. At the time of the commission of the offence, he was just 19 Q
years of age, and somewhat naive and was easily enticed by some
R R
unscrupulous characters that got him into this illicit trade. He says his role
S was just a gofer/courier and not the main trafficker. It is more of a case of S
him being unduly used and abused as in this case as a runner for others.
T T
U U
V V
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A A
B B
21. He is remorseful and wish to complete his sentence and re-
C unite with his young family and promises not to re-offend again ever. C
D D
THE TARIFF & SENTENCING
E E
Charge 1 - Trafficking in Ketamine (7.45 g)
F F
G 22. Quantity of ketamine involved in this case is 8.80 g of a solid G
containing 7.45g of ketamine. According to the established sentencing
H H
guidelines5, a quantity of 1g-10g will attract a sentence of 2-4 years.
I I
23. The quantity of 7.45 g will attract on a mathematical basis a
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starting point of about 3 years 5 months and 20 days.
K K
24. The court is urged to adopt a more lenient starting point due
L L
to his young age of 19 when he committed the offence and the fact that this
M is his first conviction, albeit a serious one. M
N N
25. A sentence closer to 3 years may be appropriate in the
O circumstances. O
P P
Charge 2 - Resisting police officers in the execution of their duties
Q Q
26. Under the Police Force Ordinance, Cap 232 (S 63), this will
R R
attract on a summary conviction a fine at Level-2 (HK$5,000) and a prison
S sentence of not exceeding 6 months’ imprisonment. Under S 23 of the S
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5
Secretary for Justice v Hii Siew Cheng [2009) 1 HKLRD 1, [2008] 3 HKC 323.
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Summary Offences Ordinance, Cap 228, the same offence attracts even a
C lesser fine. C
D D
27. The customary sentence at the Magistracy for a first offender
E is usually a small fine or a binding over for a first offender, if the officer E
sustained no injuries.
F F
G 28. Regarding the facts of the case, D1 submitted:- G
H H
(i) According to the statement of PW1, when D1 locked
I the car door, the window was half open, and PW1 was I
able to stick his hand into the car and unlock the car
J J
door. When the officer did so, D1 did not impede, resist,
K or prevent the officer from unlocking the door. It does K
appear the locking of the door was meaningless with
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the passenger side window being left half-open and
M thus the resistance is somewhat otiose and somewhat M
strange.
N N
O (ii) When D1 ran out of the car, PW1, PW2 & PW3 then O
manhandled him and he lost his balance and he fell on
P P
top of the street drain.
Q Q
(iii) D1 says he never intended to bite D1 and neither did he
R R
do so, he was just struggling with the three officers
S who were very physical with him. To prevent himself S
from being harmed, he made that stupid gesture, as his
T T
eyes were also sprayed with chemicals by one of the
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A A
B B
officers that made him very uncomfortable and wanted
C that to stop. C
D D
(iv) He lost his balance and fell on the drain and the items
E he held fell on the ground on top of the drain. E
F F
(v) The act of pushing the cigarette packet and the phone
G into the drain was subject of Charge 3 which has now G
been withdrawn and should be ignored. In any event,
H H
the drain was empty and the items pushed into it were
I easily recovered. I
J J
29. The acts of resisting were mild and posed no prolonged period
K of inconvenience to the officers. None of the officers were injured, or K
prevented from doing their duty eventually as the officers outnumbered the
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two defendants at the scene.
M M
30. The criminality of resisting is on the lower end of the scale
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and the court is urged to adopt a lower starting point.
O O
31. There is no tariff for this type of offence, and as an indication,
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in sentencing a defendant who was involved in a violent struggle with an
Q officer causing him injuries of swelling, abrasion and tenderness to various Q
parts of the officer’s body, a sentence of 1 month after plea was meted out.6
R R
S 32. As D1 has not offered his plea at the first instance, but only S
prior to the commencement of his trial, he is not entitled to a full one-third
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6
HKSAR v Najam Sheraz, DCCC 810/2010 & 20/2011.
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A A
B B
discount but only to a lesser discount of up to about 25% under these
C circumstances.7 C
D D
33. Further, Mr Pannu submitted that since D2 was found guilty
E of possession of dangerous drugs only for self-use, the court should E
consider a discount for self-consumption is appropriate for D1, as they
F F
jointly possessed the dangerous drugs in question.
G G
D2’S MITIGATION
H H
I 34. D2 was found after trial, whereupon the defence agreed the I
entire prosecution case, not guilty of one charge of trafficking in a
J J
dangerous drug, namely 8.80 grammes of a solid containing 7.45 grammes
K of ketamine. No live witnesses were called to court to testify. K
L L
35. D2 admitted the charge of simple possession of the drugs.
M The prosecution refused, erroneously with respect, to accept D2’s plea to M
simple possession. Thereby, a trial had to be conducted to determine
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whether D2 possessed the drugs in question for trafficking.
O O
36. The facts of the case had all been agreed and contained into
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Admitted Facts. In essence, the defence relied upon the Video Recorded
Q Interview of D2 taken by police officer DPC18958 and the lack of other Q
incriminating evidence vis a vis trafficking.
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S 37. It is respectfully submitted there is no latent risk in this case S
vis a vis D2, as it is vital to note that the amount of drugs involved is only
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7
HKSAR v Ngo Van Nam [2016] 5 HKC 231 at para 224
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A A
B B
7.45 grammes of ketamine. Not a large quantity. As to latent risk the
C quantity or amount of drugs is important. In this case the amount/quantity C
is not large.
D D
E 38. Further, it is submitted there is little or no evidence of latent E
risk in this instant case, it is important to note that the defendant had a clear
F F
record at the material time.
G G
39. All along D2 admitted knowledge of the drugs. He along with
H H
D1 had purchased them for his own consumption.
I I
40. D2 never admitted nor suggested there was to be any sharing
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or latent risk of the drugs he had bought and to which he stated clearly were
K only for his own consumption. K
L L
41. In this regard, it is vital to note that the court found that D2’s
M alleged usage is within the average dosage shared by two people. M
N N
42. Further, it is important to note there was no evidence to show
O D2 was unable to finance the drugs, which were for his own consumption. O
The packaging was consistent with trafficking as well as bulk buying.
P P
There was no evidence the defendants were seen travelling around with the
Q drugs after they got them. There was no other items or drug paraphernalia Q
like scales or tools found on D2.
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S 43. It is to be in addition noted, D2 was a new drug user. S
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A A
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44. It is respectfully submitted, there is no latent risk in this
C instant case, this is simply because of the relatively small quantity of drug C
involved in this case, no risk that some of the drug, finding its way into the
D D
hands of the public.
E E
DISCOUNT
F F
G 45. It is further submitted, that D2 should get full credit for G
pleading guilty to simple possession.
H H
I 46. In addition, it is vital to note the Prosecution refused to accept I
the plea.
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K 47. A trial could have been avoided if the Prosecution had K
accepted the lesser plea.
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M 48. In addition, the defence agreed the whole of the Prosecution M
case by way of Admitted Facts. No witnesses needed to be called by the
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prosecution. Thereby, saving the court valuable time.
O O
49. D2 had at the time of the offence a clear record.
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Q 50. It is submitted in law, if the offer of an accused to plead guilty Q
to a lesser offence at the outset of the trial and is rejected by the Prosecution
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and he is nonetheless convicted after trial of that offence, it is submitted he
S is entitled to credit for his willingness to plead guilty Ab Initio. (and see: S
Attorney General v Lee Kui Man [1997] HKLRD 576 and 579).
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A A
B B
51. It is further submitted, it is vital for the court to note that D2
C never challenged the facts in this case. Indeed, it is submitted D2 agreed C
as part of the prosecution case his VRI as voluntarily given.
D D
E 52. D2 told the officer in the VRI that he went to get or buy drugs E
he was never selling. D2 repeatedly stated he was never trafficking nor
F F
trading the fairly small quantity of drugs in question.
G G
BACKGROUND
H H
I 53. D2 comes from a good family. He is the second son with a I
number of sisters. D2 has now mended his way and is now working hard
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for his family. D2 spent 222 days in custody already.
K K
D1’S SENTENCE
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M Charge 1 M
N N
54. In Secretary for Justice v Hii Siew Cheng8, the starting point
O for trafficking 1 to 10 grammes of ketamine is 2 to 4 years’ imprisonment. O
According to strict mathematics, the appropriate starting point for 7.45
P P
grammes would be 41 months and 20 days. D1 indicated he would plead
Q guilty before trial but after fixing of trial date, he is entitled to 25% discount. Q
The sentence is reduced to 31 months and 7 days.
R R
S 55. D1 submitted that since the court found the drugs were jointly S
possessed with D2, and D2 possessed the drugs for self-consumption, the
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8
[2009] 1 HKLRD 1
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A A
B B
court should consider giving a self-consumption discount to D1. In this
C submission, I have the following observations: C
D D
(i) The basis for D1’s conviction is based on the Re-
E Amended Summary of Facts for D1. It is not based on E
the facts found in the trial of D2. In the Re-Amended
F F
Summary of Facts, D1 admitted he possessed the
G dangerous drugs for the purpose of trafficking. G
H H
(ii) According to the Reasons for Verdict of D2, it is found
I that D2 might possess the drugs for his own I
consumption. There is never a finding of self-
J J
consumption on the part of D1. Nor D1 ever claimed
K self-consumption. K
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(iii) In HKSAR v Wong Suet Hau and another9, the Court of
M Appeal clearly stated that “social” or “non-commercial” M
trafficking case “should not in itself provide a general
N N
basis for imposing a lighter sentence than would have
O been imposed for commercial trafficking.”10 O
P P
(iv) D1 admitted that he possessed the drugs for unlawful
Q trafficking. Part of the drugs D1 possessed were for Q
D2’s consumption. At most, D1 can claim he trafficked
R R
part of the drugs for D2. This amount to social
S trafficking, and is not a basis for reduction in sentence. S
T T
9
[2002] 1 HKLRD 69
10
Para 51 of HKSAR v Wong Suet Hau and another (supra)
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A A
B B
C (v) Therefore, I will not give any discount to D1 for D2’s C
self-consumption.
D D
E 56. D1 said he now has a young family and has a significant role E
to his cohabitant and sons. However, D1 committed these offences after
F F
his first son was born. He should have considered his young family before
G the commission of these offences. This does not amount to mitigation. G
H H
57. I noticed D1 is 21 at the moment, and was 19 at the time of
I offences. He had a clear record. I will give him a 3 months and 7 days I
discount for his young age and clear record. There is no other reason for
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me to reduce the sentence further. Therefore, for Charge 1, I sentence D1
K to 28 months’ imprisonment. K
L L
Charge 2
M M
58. Maximum sentence for the offence of resisting police officers
N N
in the execution of their duties on a summary conviction is a fine at Level-
O 2 and imprisonment for 6 months. There is no tariff for this type of case. O
P P
59. D1 locked the vehicle door after the police approached, and
Q immediately ran out of the car after PW1 opened the door. D1 put up a Q
fierce struggle when polices tried to control and subdue him. D1 opened
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his mouth posing as if he was about to bite PW1’s forearm, but he did not
S do so. It is clear that D1 was attempted to flee. S
T T
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A A
B B
60. I accept that the act of resisting did not cause any harm to any
C officers and was not for a prolonged period. It is obvious D1 committed C
this offence as he was scared at the young age of 19.
D D
E 61. Considering the above, I adopt a starting point of 8 weeks’ E
imprisonment. Given his guilty plea, I reduce the sentence to 6 weeks’
F F
imprisonment.
G G
TOTALITY
H H
I 62. Consider the totality of offences, given his young age at the I
time of offence, I order that both sentence to run concurrently. Therefore,
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a total sentence of 28 months’ imprisonment.
K K
D2’S SENTENCE
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M 63. D2 is convicted of one charge of possession of a dangerous M
drug. According to the case of HKSAR v Mok Cho Tik11, the starting point
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for mere possession of a quantity of dangerous drugs which a bona fide
O user would normally have in his possession should be in the range of 12 to O
18 months’ imprisonment. I have borne in mind the principles laid down
P P
in HKSAR v Wan Sheung Sum12when determining the proper starting point.
Q Q
64. Defence submitted HKSAR v Tang Kin Chung Harry 13 ,
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suggesting a one month sentence be sufficient. However, that case
S S
T 11 T
CACC 165/2000
12
[2000] 1 HKLRD 405
13
[2019] HKCFI 232
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A A
B B
involves only 0.06 gramme of powder containing cocaine, very different
C from the present case. C
D D
65. The amount of drugs is 7.45 grammes of ketamine. I consider
E a starting point of 12 months appropriate. E
F F
66. Mr Allan submitted there is no latent risk, as the amount of
G drugs is only 7.45 grammes of ketamine and D2 has a clear record. G
H H
67. First, 7.45 grammes is not a small amount for simple
I possession. In the Reasons for Verdict, I found the drugs can last for 1-2 I
months. The drugs were already packed in 27 resealable bags, easy for
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distribution. D2 has a clear record and no drug addiction history.
K According to his DATC report, D2 had never tried dangerous drugs before. K
Given D2 is not a drug user, the risk for D2 to decide not to use the drug,
L L
but instead the drugs found its way to public, is relatively high.
M M
68. I noted in the DACT report, D2 stated that the drugs were for
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profit. Mr Allan submitted that there was a misunderstanding.
O O
69. In any event, even if I do not consider what was said in the
P P
DATC report, I am of the view the latent risk is high. Therefore, I will
Q increase the starting point by 3 months. Q
R R
70. D2 only indicated his plea on the first day of trial. According
S to HKSR v Ngo Van Nam14, if the plea of guilty is tendered at the first day S
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14
[2016] 5 HKC 231
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A A
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of trial, subject to the judge’s overriding discretion in sentencing, the
C appropriate discount for sentence is 20% of that taken as the starting point. C
D D
71. D2 relied on Lee Kui Man to say that D2 is entitled for full
E credit for his willingness to plead guilty. However, in Lee Kui Man, the E
Court of Appeal only indicated as the respondent was prepared to plead, a
F F
discount was given. At the time, a one-third discount was given. However,
G the case was decided before Ngo Van Nam, the amount of discount should G
be considered in light of the latest authority.
H H
I 72. According to Ngo Van Nam, the amount of discount is I
determined by when defendant indicated his plea. D2 only indicated his
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plea on the first day of trial. Even if the prosecution does not accept his
K offer, D2 could have indicated his intention to plea at an earlier stage. In K
any event, the court is now sentencing D2 as if he pleaded guilty to the
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charge of possession of a dangerous drug. His time of plea would be the
M time he indicated his offer to the court and prosecution, not affected by M
prosecution’s ultimate decision on whether to accept his offer or not. As
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D2 only indicated his plea on the first day of trial, following Ngo Van Nam,
O he is entitled to 20% discount. O
P P
73. Mr Allan urged the court to give more discount because D2
Q had admitted all the facts in trial. However, I have already given D2 Q
discount as if he pleaded guilty without trial, I will not give him further
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discount. Therefore, I am of the view that he is only entitled to 20%
S discount. The sentence is reduced to 12 months’ imprisonment. S
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A A
B B
74. D2 had a clear record at the time of offence, I give him 1
C month discount. There are no other mitigating factors for the court to C
consider. Therefore, I impose a sentence of 11 months’ imprisonment.
D D
E E
F F
( Colin Wong )
Deputy District Judge
G G
H H
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K K
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M M
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O O
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Q Q
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S S
T T
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V V
DCCC411/2022 HKSAR v. HASSAN HARIS AND ANOTHER - LawHero
A A
B B
DCCC 411/2022
C [2023] HKDC 1063 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 411 OF 2022
F F
G ----------------------------------- G
HKSAR
H H
v
I HASSAN HARIS (D1) I
REHMAN SAFE-UR (D2)
J J
-----------------------------------
K K
Before: Deputy District Judge Colin Wong
L L
Date: 31 July 2023
M Present: Ms Katie Fong, Public Prosecutor, for HKSAR M
Mr Peter Pannu, instructed by Choy Yung & Co, assigned
N N
by the Director of Legal Aid, for the 1st defendant
O Mr William Allan, instructed by Mohnani & Associates, for O
the 2nd defendant
P P
Offences: [1] Trafficking in a dangerous drug（販運危險藥物）
Q Q
[2] Resisting police officers in the execution of their duties
R
（抗拒執行職責的警務人員） R
S S
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T REASONS FOR SENTENCE T
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A A
B B
C 1. D1 pleaded guilty to Charge 1 trafficking in a dangerous drug1, C
namely 8.80 grammes of a solid containing 7.45 grammes of ketamine and
D D
Charge 2 resisting police officers in the execution of their duties2. Charge
E 3 against D13 is left in court file. E
F F
2. D2 pleaded not guilty to Charge 1. D2 was willing to plead
G guilty to a charge of simple possession, but prosecution refused. After trial, G
D2 was found not guilty to Charge 1, but was convicted for the charge of
H H
possession of a dangerous drug4.
I I
3. Before sentence, I obtained a background report for D1 and
J J
Drug Addiction Treatment Centre Suitability report for D2.
K K
FACTS OF D1
L L
M 4. At about 1850 hours on 30 December 2021, whilst police M
officers were conducting an anti-crime patrol, PC16177 (PW1) and
N N
PC16748 (PW2) observed a black vehicle bearing number plate XC7742
O (“Vehicle”) parked in the lay-by area outside Chung Bo House, Tin Chung O
Court, Tin Shui Wai. The engine of the Vehicle was switched on and D2
P P
was sitting in the driver’s seat. D1 was sitting in the front passenger seat
Q looking around furtively. Q
R R
S 1
S
Contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134.
2
Contrary to section 63 of the Police Force Ordinance, Cap 232.
3
Charge 3: Doing an act or a series of acts tending and intended to pervert the course of public justice,
T T
contrary to Common Law and punishable under section 101I(5) of the Criminal Procedure Ordinance,
Cap 221.
4
Contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134.
U U
V V
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A A
B B
5. PW1 and PW2 approached the Vehicle. PC10496 (PW3)
C arrived thereafter. D1 appeared to be nervous and locked the Vehicle. C
Subsequently, when PW1 managed to open the nearside front door of the
D D
Vehicle, D1 immediately ran out of the Vehicle. PW1 shouted, “Police,
E don’t move”. D1 put up a fierce struggle whilst PW1 and PW2 controlled E
D1’s arms, and PW3 also tried to subdue D1 onto the ground.
F F
G 6. During the course of the struggle, PW1 spotted that a red and G
white Marlboro cigarette box (“Cigarette Box”) in D1’s left hand and a
H H
black mobile phone (“Black Mobile Phone”) in D1’s right hand fell onto
I the ground. D1 then pushed the Cigarette Box and the Mobile Phone into I
a drain hole whilst he was struggling on the ground.
J J
K 7. Thereafter, whilst continuing to struggle, D1 suddenly opened K
his mouth, posing as if he was about to bite PW1’s left forearm. PW1
L L
warned D1 several times that OC Foam would be used but in vain.
M Eventually PW1 sprayed OC foam against D1’s face. Subsequently, PW1, M
PW2 and PW3 managed to subdue and handcuff D1.
N N
O 8. At about 1905 hours, PW1 opened the drain cover and seized O
the Cigarette Box and the Black Mobile Phone from the drain. PW1
P P
opened the Cigarette Box in front of D1 and found 27 transparent re-
Q sealable plastic bags therein, each plastic bag containing some white Q
powder suspected to be ketamine (“27 Bags”).
R R
S 9. PW1 also searched D1 and seized from his bag HK$6,273 in S
cash, a white mobile phone (“White Mobile Phone”).
T T
U U
V V
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A A
B B
10. D1 was arrested for “trafficking in a dangerous drug” by PW1.
C Under caution, D1 stated in Punti that there were twenty something “K” C
(“K 仔”) inside the Cigarette Box. He bought them for $7,000 and wanted
D D
to sell them for $9,000 to make a profit. He also asked for a chance because
E his son had just been born. E
F F
11. During a subsequent video recorded cautioned interview
G taken by DPC18958 on 31 December 2021 at 2111 hours to 2148 hours, G
D1 stated in English, inter alia, that:-
H H
I (a) The dangerous drug was “K” (“K 仔 ”) for self- I
J
consumption and denied trafficking in dangerous drugs. J
K K
(b) D1 and D2 purchased 26 packets [of dangerous drugs]
L
for self-consumption for $9,300. D1 and D2 each paid L
$4,650. The 26 packets were to be split equally
M M
between them. The seller gave them 1 packet for free.
N N
(c) The seller threw the Cigarette Box and the White
O O
Mobile Phone into the Vehicle without collecting
P money from D1 and D2 and went away. P
Q Q
(d) D1 and D2 usually took the dangerous drug every 2 to
R 3 days. They purchased 27 packets for a month’s R
consumption.
S S
T (e) D1 was a new user of the dangerous drugs. He took it T
4 or 5 days ago due to depression.
U U
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A A
B B
C (f) D1 opened the Cigarette Box to check the dangerous C
drugs.
D D
E 12. The Government Chemist’s Certificate certified that the 27 E
Bags were 27 plastic bags containing a total of 8.80 grammes of a solid
F F
containing 7.45 grammes of ketamine. The street value of 8.80 grammes
G of ketamine was HK$4,190 in December 2021. G
H H
13. D2 was the registered owner of the Vehicle at the material
I time. I
J J
FACTS OF D2
K K
14. Facts of the D2 were already spelt out in the Reasons for
L L
Verdict. I do not repeat them herein. In short, D2 was found inside the
M Vehicle with knowledge of the drugs. The court found he did not possess M
the same for the purpose of trafficking.
N N
O D1’S MITIGATION O
P P
15. Prior to the commencement of the trial on 5 July 2023, the
Q solicitors for D1 wrote to the District Court indicating that D1 would plead Q
guilty to Charges 1 & 2.
R R
S S
T T
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A A
B B
D1’S BACKGROUND
C C
16. D1 was born in Hong Kong on 12 July 2002 and is now 21
D D
years old. At the time of the offence, he was aged 19. He is a permanent
E resident here. He has a clear record. E
F F
17. His mother died in January 2013 from kidney failure when he
G was only 11 years old. He lives with his father, his elder brother and his G
elder sister and his partner, with whom he has two children, one aged two
H H
and one just one week old.
I I
18. His partner is now a full-time carer of the children and prior
J J
to that she worked at a restaurant. D1 is working as a security guard
K earning HK$16,000 per month. K
L L
19. D1 foolishly got himself into trafficking as he was driven to
M earning more money after his partner had a child. He was not academically M
accomplished as he was a school drop out after completing Secondary-3
N N
after his mother’s death and was not able to earn enough to maintain his
O new family. The silver lining is that he had just started on this venture and O
was busted in what is believed to be a sting operation.
P P
Q 20. At the time of the commission of the offence, he was just 19 Q
years of age, and somewhat naive and was easily enticed by some
R R
unscrupulous characters that got him into this illicit trade. He says his role
S was just a gofer/courier and not the main trafficker. It is more of a case of S
him being unduly used and abused as in this case as a runner for others.
T T
U U
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A A
B B
21. He is remorseful and wish to complete his sentence and re-
C unite with his young family and promises not to re-offend again ever. C
D D
THE TARIFF & SENTENCING
E E
Charge 1 - Trafficking in Ketamine (7.45 g)
F F
G 22. Quantity of ketamine involved in this case is 8.80 g of a solid G
containing 7.45g of ketamine. According to the established sentencing
H H
guidelines5, a quantity of 1g-10g will attract a sentence of 2-4 years.
I I
23. The quantity of 7.45 g will attract on a mathematical basis a
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starting point of about 3 years 5 months and 20 days.
K K
24. The court is urged to adopt a more lenient starting point due
L L
to his young age of 19 when he committed the offence and the fact that this
M is his first conviction, albeit a serious one. M
N N
25. A sentence closer to 3 years may be appropriate in the
O circumstances. O
P P
Charge 2 - Resisting police officers in the execution of their duties
Q Q
26. Under the Police Force Ordinance, Cap 232 (S 63), this will
R R
attract on a summary conviction a fine at Level-2 (HK$5,000) and a prison
S sentence of not exceeding 6 months’ imprisonment. Under S 23 of the S
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5
Secretary for Justice v Hii Siew Cheng [2009) 1 HKLRD 1, [2008] 3 HKC 323.
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A A
B B
Summary Offences Ordinance, Cap 228, the same offence attracts even a
C lesser fine. C
D D
27. The customary sentence at the Magistracy for a first offender
E is usually a small fine or a binding over for a first offender, if the officer E
sustained no injuries.
F F
G 28. Regarding the facts of the case, D1 submitted:- G
H H
(i) According to the statement of PW1, when D1 locked
I the car door, the window was half open, and PW1 was I
able to stick his hand into the car and unlock the car
J J
door. When the officer did so, D1 did not impede, resist,
K or prevent the officer from unlocking the door. It does K
appear the locking of the door was meaningless with
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the passenger side window being left half-open and
M thus the resistance is somewhat otiose and somewhat M
strange.
N N
O (ii) When D1 ran out of the car, PW1, PW2 & PW3 then O
manhandled him and he lost his balance and he fell on
P P
top of the street drain.
Q Q
(iii) D1 says he never intended to bite D1 and neither did he
R R
do so, he was just struggling with the three officers
S who were very physical with him. To prevent himself S
from being harmed, he made that stupid gesture, as his
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eyes were also sprayed with chemicals by one of the
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A A
B B
officers that made him very uncomfortable and wanted
C that to stop. C
D D
(iv) He lost his balance and fell on the drain and the items
E he held fell on the ground on top of the drain. E
F F
(v) The act of pushing the cigarette packet and the phone
G into the drain was subject of Charge 3 which has now G
been withdrawn and should be ignored. In any event,
H H
the drain was empty and the items pushed into it were
I easily recovered. I
J J
29. The acts of resisting were mild and posed no prolonged period
K of inconvenience to the officers. None of the officers were injured, or K
prevented from doing their duty eventually as the officers outnumbered the
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two defendants at the scene.
M M
30. The criminality of resisting is on the lower end of the scale
N N
and the court is urged to adopt a lower starting point.
O O
31. There is no tariff for this type of offence, and as an indication,
P P
in sentencing a defendant who was involved in a violent struggle with an
Q officer causing him injuries of swelling, abrasion and tenderness to various Q
parts of the officer’s body, a sentence of 1 month after plea was meted out.6
R R
S 32. As D1 has not offered his plea at the first instance, but only S
prior to the commencement of his trial, he is not entitled to a full one-third
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6
HKSAR v Najam Sheraz, DCCC 810/2010 & 20/2011.
U U
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A A
B B
discount but only to a lesser discount of up to about 25% under these
C circumstances.7 C
D D
33. Further, Mr Pannu submitted that since D2 was found guilty
E of possession of dangerous drugs only for self-use, the court should E
consider a discount for self-consumption is appropriate for D1, as they
F F
jointly possessed the dangerous drugs in question.
G G
D2’S MITIGATION
H H
I 34. D2 was found after trial, whereupon the defence agreed the I
entire prosecution case, not guilty of one charge of trafficking in a
J J
dangerous drug, namely 8.80 grammes of a solid containing 7.45 grammes
K of ketamine. No live witnesses were called to court to testify. K
L L
35. D2 admitted the charge of simple possession of the drugs.
M The prosecution refused, erroneously with respect, to accept D2’s plea to M
simple possession. Thereby, a trial had to be conducted to determine
N N
whether D2 possessed the drugs in question for trafficking.
O O
36. The facts of the case had all been agreed and contained into
P P
Admitted Facts. In essence, the defence relied upon the Video Recorded
Q Interview of D2 taken by police officer DPC18958 and the lack of other Q
incriminating evidence vis a vis trafficking.
R R
S 37. It is respectfully submitted there is no latent risk in this case S
vis a vis D2, as it is vital to note that the amount of drugs involved is only
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7
HKSAR v Ngo Van Nam [2016] 5 HKC 231 at para 224
U U
V V
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A A
B B
7.45 grammes of ketamine. Not a large quantity. As to latent risk the
C quantity or amount of drugs is important. In this case the amount/quantity C
is not large.
D D
E 38. Further, it is submitted there is little or no evidence of latent E
risk in this instant case, it is important to note that the defendant had a clear
F F
record at the material time.
G G
39. All along D2 admitted knowledge of the drugs. He along with
H H
D1 had purchased them for his own consumption.
I I
40. D2 never admitted nor suggested there was to be any sharing
J J
or latent risk of the drugs he had bought and to which he stated clearly were
K only for his own consumption. K
L L
41. In this regard, it is vital to note that the court found that D2’s
M alleged usage is within the average dosage shared by two people. M
N N
42. Further, it is important to note there was no evidence to show
O D2 was unable to finance the drugs, which were for his own consumption. O
The packaging was consistent with trafficking as well as bulk buying.
P P
There was no evidence the defendants were seen travelling around with the
Q drugs after they got them. There was no other items or drug paraphernalia Q
like scales or tools found on D2.
R R
S 43. It is to be in addition noted, D2 was a new drug user. S
T T
U U
V V
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A A
B B
44. It is respectfully submitted, there is no latent risk in this
C instant case, this is simply because of the relatively small quantity of drug C
involved in this case, no risk that some of the drug, finding its way into the
D D
hands of the public.
E E
DISCOUNT
F F
G 45. It is further submitted, that D2 should get full credit for G
pleading guilty to simple possession.
H H
I 46. In addition, it is vital to note the Prosecution refused to accept I
the plea.
J J
K 47. A trial could have been avoided if the Prosecution had K
accepted the lesser plea.
L L
M 48. In addition, the defence agreed the whole of the Prosecution M
case by way of Admitted Facts. No witnesses needed to be called by the
N N
prosecution. Thereby, saving the court valuable time.
O O
49. D2 had at the time of the offence a clear record.
P P
Q 50. It is submitted in law, if the offer of an accused to plead guilty Q
to a lesser offence at the outset of the trial and is rejected by the Prosecution
R R
and he is nonetheless convicted after trial of that offence, it is submitted he
S is entitled to credit for his willingness to plead guilty Ab Initio. (and see: S
Attorney General v Lee Kui Man [1997] HKLRD 576 and 579).
T T
U U
V V
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A A
B B
51. It is further submitted, it is vital for the court to note that D2
C never challenged the facts in this case. Indeed, it is submitted D2 agreed C
as part of the prosecution case his VRI as voluntarily given.
D D
E 52. D2 told the officer in the VRI that he went to get or buy drugs E
he was never selling. D2 repeatedly stated he was never trafficking nor
F F
trading the fairly small quantity of drugs in question.
G G
BACKGROUND
H H
I 53. D2 comes from a good family. He is the second son with a I
number of sisters. D2 has now mended his way and is now working hard
J J
for his family. D2 spent 222 days in custody already.
K K
D1’S SENTENCE
L L
M Charge 1 M
N N
54. In Secretary for Justice v Hii Siew Cheng8, the starting point
O for trafficking 1 to 10 grammes of ketamine is 2 to 4 years’ imprisonment. O
According to strict mathematics, the appropriate starting point for 7.45
P P
grammes would be 41 months and 20 days. D1 indicated he would plead
Q guilty before trial but after fixing of trial date, he is entitled to 25% discount. Q
The sentence is reduced to 31 months and 7 days.
R R
S 55. D1 submitted that since the court found the drugs were jointly S
possessed with D2, and D2 possessed the drugs for self-consumption, the
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8
[2009] 1 HKLRD 1
U U
V V
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A A
B B
court should consider giving a self-consumption discount to D1. In this
C submission, I have the following observations: C
D D
(i) The basis for D1’s conviction is based on the Re-
E Amended Summary of Facts for D1. It is not based on E
the facts found in the trial of D2. In the Re-Amended
F F
Summary of Facts, D1 admitted he possessed the
G dangerous drugs for the purpose of trafficking. G
H H
(ii) According to the Reasons for Verdict of D2, it is found
I that D2 might possess the drugs for his own I
consumption. There is never a finding of self-
J J
consumption on the part of D1. Nor D1 ever claimed
K self-consumption. K
L L
(iii) In HKSAR v Wong Suet Hau and another9, the Court of
M Appeal clearly stated that “social” or “non-commercial” M
trafficking case “should not in itself provide a general
N N
basis for imposing a lighter sentence than would have
O been imposed for commercial trafficking.”10 O
P P
(iv) D1 admitted that he possessed the drugs for unlawful
Q trafficking. Part of the drugs D1 possessed were for Q
D2’s consumption. At most, D1 can claim he trafficked
R R
part of the drugs for D2. This amount to social
S trafficking, and is not a basis for reduction in sentence. S
T T
9
[2002] 1 HKLRD 69
10
Para 51 of HKSAR v Wong Suet Hau and another (supra)
U U
V V
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A A
B B
C (v) Therefore, I will not give any discount to D1 for D2’s C
self-consumption.
D D
E 56. D1 said he now has a young family and has a significant role E
to his cohabitant and sons. However, D1 committed these offences after
F F
his first son was born. He should have considered his young family before
G the commission of these offences. This does not amount to mitigation. G
H H
57. I noticed D1 is 21 at the moment, and was 19 at the time of
I offences. He had a clear record. I will give him a 3 months and 7 days I
discount for his young age and clear record. There is no other reason for
J J
me to reduce the sentence further. Therefore, for Charge 1, I sentence D1
K to 28 months’ imprisonment. K
L L
Charge 2
M M
58. Maximum sentence for the offence of resisting police officers
N N
in the execution of their duties on a summary conviction is a fine at Level-
O 2 and imprisonment for 6 months. There is no tariff for this type of case. O
P P
59. D1 locked the vehicle door after the police approached, and
Q immediately ran out of the car after PW1 opened the door. D1 put up a Q
fierce struggle when polices tried to control and subdue him. D1 opened
R R
his mouth posing as if he was about to bite PW1’s forearm, but he did not
S do so. It is clear that D1 was attempted to flee. S
T T
U U
V V
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A A
B B
60. I accept that the act of resisting did not cause any harm to any
C officers and was not for a prolonged period. It is obvious D1 committed C
this offence as he was scared at the young age of 19.
D D
E 61. Considering the above, I adopt a starting point of 8 weeks’ E
imprisonment. Given his guilty plea, I reduce the sentence to 6 weeks’
F F
imprisonment.
G G
TOTALITY
H H
I 62. Consider the totality of offences, given his young age at the I
time of offence, I order that both sentence to run concurrently. Therefore,
J J
a total sentence of 28 months’ imprisonment.
K K
D2’S SENTENCE
L L
M 63. D2 is convicted of one charge of possession of a dangerous M
drug. According to the case of HKSAR v Mok Cho Tik11, the starting point
N N
for mere possession of a quantity of dangerous drugs which a bona fide
O user would normally have in his possession should be in the range of 12 to O
18 months’ imprisonment. I have borne in mind the principles laid down
P P
in HKSAR v Wan Sheung Sum12when determining the proper starting point.
Q Q
64. Defence submitted HKSAR v Tang Kin Chung Harry 13 ,
R R
suggesting a one month sentence be sufficient. However, that case
S S
T 11 T
CACC 165/2000
12
[2000] 1 HKLRD 405
13
[2019] HKCFI 232
U U
V V
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A A
B B
involves only 0.06 gramme of powder containing cocaine, very different
C from the present case. C
D D
65. The amount of drugs is 7.45 grammes of ketamine. I consider
E a starting point of 12 months appropriate. E
F F
66. Mr Allan submitted there is no latent risk, as the amount of
G drugs is only 7.45 grammes of ketamine and D2 has a clear record. G
H H
67. First, 7.45 grammes is not a small amount for simple
I possession. In the Reasons for Verdict, I found the drugs can last for 1-2 I
months. The drugs were already packed in 27 resealable bags, easy for
J J
distribution. D2 has a clear record and no drug addiction history.
K According to his DATC report, D2 had never tried dangerous drugs before. K
Given D2 is not a drug user, the risk for D2 to decide not to use the drug,
L L
but instead the drugs found its way to public, is relatively high.
M M
68. I noted in the DACT report, D2 stated that the drugs were for
N N
profit. Mr Allan submitted that there was a misunderstanding.
O O
69. In any event, even if I do not consider what was said in the
P P
DATC report, I am of the view the latent risk is high. Therefore, I will
Q increase the starting point by 3 months. Q
R R
70. D2 only indicated his plea on the first day of trial. According
S to HKSR v Ngo Van Nam14, if the plea of guilty is tendered at the first day S
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14
[2016] 5 HKC 231
U U
V V
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A A
B B
of trial, subject to the judge’s overriding discretion in sentencing, the
C appropriate discount for sentence is 20% of that taken as the starting point. C
D D
71. D2 relied on Lee Kui Man to say that D2 is entitled for full
E credit for his willingness to plead guilty. However, in Lee Kui Man, the E
Court of Appeal only indicated as the respondent was prepared to plead, a
F F
discount was given. At the time, a one-third discount was given. However,
G the case was decided before Ngo Van Nam, the amount of discount should G
be considered in light of the latest authority.
H H
I 72. According to Ngo Van Nam, the amount of discount is I
determined by when defendant indicated his plea. D2 only indicated his
J J
plea on the first day of trial. Even if the prosecution does not accept his
K offer, D2 could have indicated his intention to plea at an earlier stage. In K
any event, the court is now sentencing D2 as if he pleaded guilty to the
L L
charge of possession of a dangerous drug. His time of plea would be the
M time he indicated his offer to the court and prosecution, not affected by M
prosecution’s ultimate decision on whether to accept his offer or not. As
N N
D2 only indicated his plea on the first day of trial, following Ngo Van Nam,
O he is entitled to 20% discount. O
P P
73. Mr Allan urged the court to give more discount because D2
Q had admitted all the facts in trial. However, I have already given D2 Q
discount as if he pleaded guilty without trial, I will not give him further
R R
discount. Therefore, I am of the view that he is only entitled to 20%
S discount. The sentence is reduced to 12 months’ imprisonment. S
T T
U U
V V
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A A
B B
74. D2 had a clear record at the time of offence, I give him 1
C month discount. There are no other mitigating factors for the court to C
consider. Therefore, I impose a sentence of 11 months’ imprisonment.
D D
E E
F F
( Colin Wong )
Deputy District Judge
G G
H H
I I
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K K
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M M
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O O
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